In an emergency meeting Sunday afternoon, the State Board of Elections voted to meet Tuesday at 10 a.m. to establish legal guidelines for counties to resolve complaints about ballot challenges in the Nov. 8 election. The board, with three Republican and two Democratic members, rejected a request from GOP Gov. Pat McCrory’s re-election committee to have the state take jurisdiction over protests in more than 50 counties and instead will leave every county but Bladen in charge of its vote counts.
[UPDATE: Information about the meeting location and materials for public comment are here.]
As of Sunday night, McCrory trailed Democratic Attorney General Roy Cooper by 6,800 votes out of nearly 4.7 million ballots cast.
Josh Lawson, general counsel for the state board, said establishing statewide legal guidelines could avoid a repeat of the confusion that occurred during the 2000 presidential election in Florida, when the Sunshine State allowed counties to set their own standards for counting ballots, resulting in the infamous “hanging chad” controversy. The dispute over ballots in Florida eventually wound up with the U.S. Supreme Court’s controversial Bush v. Gore decision.
The McCrory Committee’s request, filed with the board by campaign manager Russell Peck, said consolidating the protests would “prevent inconsistent results among the counties and facilitate a quicker resolution of the issues raised by the protests.”
In a response, Kevin Hamilton, general counsel of Attorney General Roy Cooper’s campaign, said taking over jurisdiction of the protests would put the state board in the role of revisiting all the factual evidence that’s already been presented before the county boards, requiring new hearings at which voters and witnesses would have to travel to Raleigh to present evidence and possibly hire lawyers to represent them — a point echoed by Lawson. Hamilton suggested the board establish legal guidelines for counties to apply, and by a 5-0 vote, the board essentially agreed.
Board member Joshua Malcolm, a Democrat, made the motion for the board to reconvene Tuesday and invite the McCrory and Cooper campaigns, along with representatives of county elections boards and other “interested parties,” to suggest how the legal guidelines should work. He said the state board trusts that the county board members they appoint are capable of judging the facts in an election challenge or protest.
The motion also included a provision, suggested by Chairman Grant Whitney, a Republican, that the board maintain its authority to review and possibly overrule the actions taken by county boards after they get the guidelines.
Republican Rhonda Amoroso, the board’s secretary, warned that unless Tuesday’s hearing had a strict schedule and a defined timeline it could become a “circus,” with superfluous witnesses wasting the time of the board and the public. She also said an open-ended hearing would give too much time to early presenters and shortchange those at the end of the agenda.
Lawson and Executive Director Kim Strach said they would establish an agenda for the hearing that would allow a sufficient amount of public comment while limiting the subjects to legal issues rather than more general complaints or questions over fact-finding.
The board did, however, assume jurisdiction over the election protest in Bladen County, in which the incoming commissioner of the Soil and Water Conservation District alleges members of a local Democratic political action committee set up an “absentee ballot mill,” generating hundreds of fraudulent votes.
It chose not to take up a motion from Amoroso to assume jurisdiction over protests filed in Durham County. On Friday, the county board of elections voted unanimously to reject a request for a recount from Durham County resident Thomas Stark, general counsel for the state Republican Party. Stark filed a protest over 94,000 ballots that were recorded late on election night. The county’s voting machines initially were incapable of handling the volume of ballots that were run through it, but later were able to accept them. Brian Neesby, a systems analyst for the state elections board, said Friday that the vote tallies for governor taken from the voting machines and a tape backup matched.
Several board members noted that the Durham matter had been appealed to the state board for review, so dealing with the matter Tuesday would be premature.
In other action taken Sunday, the board unanimously authorized the hiring of outside counsel if it is sued after the election is certified. Whitney said the move was requested by Cooper’s office so that there would be no question of a conflict of interest, since the attorney general represents the board in election-related litigation.